183 Ind. 258 | Ind. | 1915
— This action was brought by appellant company to condemn and appropriate a right of way for its telegraph poles and wires longitudinally upon the right of way of appellee, South, East and St. Louis Eailway Company operated by the Louisville and Nashville Eailroad Company. The action was filed in the Vanderburgh Circuit
The several alleged errors assigned and relied on for reversal present in different forms only a single question, and that is the right of appellant, under the pleadings and the proof to condemn the real estate described in the complaint.
The interference of a proposed subsequent use may be so complete and absolute as to entirely destroy and supersede such former use, or it may be so slight as to be merely nominal, occasioning no inconvenience whatever. In either ease there is no doubt as to the law with respect to a subsequent condemnation. In the first instance, the right to condemn does not exist unless it is conferred by statute, either expressly or by necessary implication; and, in the second instance, the right to condemn is inferred from a statute giving general authority to condemn. Between a slight and inconsiderable interference' on the one hand and an interference which is so complete and absolute as to entirely destroy and supersede a former use on the other, cases may be found presenting all shades and degrees of interference and inconvenience. In cases where the subsequent use for which the appropriation is sought is not of such a character as to destroy the former use but is of such a character as to interfere with it to a greater or less extent, the rule is not so apparent. Under the authorities it seems that a slight or inconsiderable interference with a former use may be compensated in damages and the appropriation allowed; and, that where the interference and inconvenience which would result are material and substantial, damages can not be awarded and the right to condemn does not exist; but our investigation has not disclosed any ease in which a court has attempted to fix a standard by which the degree of interference or inconvenience can be measured so as to determine with accuracy when the degree of interference and inconvenience passes the .stage where it can be.
In view of the conclusion we have reached, other questions presented need not be considered. Judgment affirmed.
Note. — Reported in 108 N. E. 951. As to right to take for public use lands already taken for a public use by others, see 40 Am. Rep. 748. As to condemnation of right of way for telegraph or telephone lines along railroad right of way, see 42 L. R. A. (N. S.) 225. As to the right of a municipality to condemn railroad property for municipal purposes, see Ann. Cas. 1913 E 163. See, also, under (1) 15 Cyc. 625, 612, 614; (2, 4) 3 Cyc. 360; (3) 15 Cyc. 956; 3 Cyc. 360.